Abstract
How can we ‘measure’ the quality of judicial reasoning? Indeed, can we measure it at all? Or should we be satisfied with the ‘softer’ method of assessment when it comes to the quality of judicial motivation? These are the questions I address in this chapter. In the first part I justify the importance of quality assurance of judicial reasoning itself, independently from the other elements of adjudication. I then recap the possible objections to a project to assess the quality of justification (judicial independence, diversity of judicial styles, problem of measurability). I try to answer these challenges and I outline some examples of the possible forms of quality control over the reasoning activity of judges.
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Notes
- 1.
For a description of the European situation, see CCJE (2015). See also the introductory Chapter “Measuring the Unmeasurable?” of this volume.
- 2.
At least in those political systems that implement the idea of the ‘new constitutionalism’. For the explanation of this concept, see Hirschl (2004).
- 3.
- 4.
For problems with the statistical approach in cases of the different Rule of Law indexes, see Scheppele (2013).
- 5.
See Chapter “Methods of Quality Assessment of Judicial Reasoning in Hungary” in this volume.
- 6.
Interestingly enough, according to the official mission statement of the Scoreboard, the two basic values a well-functioning justice system has to serve are sustainable growth and social stability. Both purposes are compatible, even with a dictatorial political system.
- 7.
I use the term ‘reasonable disagreement’ as John Rawls elaborated it, see in Rawls (2005), 54–58.
- 8.
For example, in one of its landmark decisions—Brown v. Board of Education (1954)—the US Supreme Court “deliberately fudged the issue of constitutional principles, and made it impossible to figure out whether the decision had a coherent justificatory background. In that case, this was the price of making a unanimous decision which was politically important at the time.” See Bódig (2010), 493.
- 9.
The classical example here is the traditional French model, see Lasser (2004), 27–61.
- 10.
For the autonomy of justification, see Engel (2004), 2–7.
- 11.
This was what Dworkin wanted to express when noting that “it matters how judges decide cases”. Dworkin (1986), 1.
- 12.
See Engel (2004), 19–21.
- 13.
This ‘shield function’ of reasoning can become extremely important in the case of countries with a very weak rule of law tradition.
- 14.
See Engel (2004), 19–21.
- 15.
For example, the argumentative style of the French judges is commonly seen as a very formalistic one, see Lasser (2004), 30–34. Lasser argues that in the French system the meritocratic educational, vocational and institutional structures generate a professional ethos amongst judicial magistrats which can guarantee high-quality adjudication without providing detailed reasoning for judicial decisions. See Lasser (2004), 332–337.
- 16.
Although I cannot find a legal scholar who explicitly represents the limited commensurability thesis, this argument is very similar to the argument represented by cultural relativists who oppose the idea of universal human rights. See Teson (1984).
- 17.
This is the model of ‘bound decision making’. See Kühn (2004), 532–534.
- 18.
In my belief, it is not the acceptance of certain arguments which makes a discourse rational. The background of my assumption relies heavily on the results of the Edinburgh School of Philosophy of Science.
- 19.
For a more detailed description of the Rovaniemi project, see Chapter “Quality of Legal Decisions: The Criteria Established by the Finnish Judiciary” in this volume.
- 20.
For example, see Taxquet v Belgium Application No 926/05, Judgment, 16 November 2010, paras. 90 and 92.
- 21.
I use here the notion of ‘peer’ in a broad sense, which includes both real peers and superiors of the judge evaluated.
- 22.
As for the latter, Francesco Contini gives the example of Italy where “the [internal peer-review based] performance evaluation mechanism does not seem to be very effective in filtering poor performing judges (and prosecutors). In the period October 2008–July 2010, 2300 judges (and prosecutors) have been examined: 2297 got a positive evaluation, 3 a ‘non positive’ evaluation and no judges got a ‘negative evaluation.’” Cavallini (2012), 1236. Draft prepared for the conference “How to Measure the Quality of Judicial Reasoning”, held in Debrecen, 28 November 2014.
- 23.
For the origin of this quote, see the introductory Chapter “Measuring the Unmeasurable?” of this volume.
- 24.
- 25.
Another example of measuring a deeply human attribute is the IQ test. As we know, this test can measure the very complex competences of intelligence by a simple number with surprising accuracy.
- 26.
We applied this method in previous research; see Matczak et al. (2010), 88–90. For more information about the methodology, see www.conreasonproject.com/automated-content-analysis-of-legal-texts.html.
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Bencze, M. (2018). Obstacles and Opportunities—Measuring the Quality of Judicial Reasoning. In: Bencze, M., Ng, G. (eds) How to Measure the Quality of Judicial Reasoning. Ius Gentium: Comparative Perspectives on Law and Justice, vol 69. Springer, Cham. https://doi.org/10.1007/978-3-319-97316-6_6
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